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Aug. 31 — Partisan deadlocks at Federal Election Commission have been highlighted as the source of dysfunction at the beleaguered agency, but a new analysis of some of the most controversial matters handled by the FEC shows that focusing solely on the battles between the FEC's Democratic and Republican commissioners misses a lot of what is really going on.

The analysis looked at more than two dozen closed enforcement cases dealing with one of the thorniest issues now faced by the agency—allegations of illegal coordination between nominally independent super political action committees and the candidates they support. The result: Democrats and Republicans on the FEC agreed nearly three times more often than they deadlocked on these controversial cases.

Super PAC cases are important because those organizations, which can raise unlimited amounts of money to influence elections, are becoming increasingly dominant in U.S. campaigns. In theory, at least, they are supposed to remain legally independent of the candidates they support. But, whether super PACs face any practical limits on their activities largely is determined by the enforcement rulings of the FEC in individual cases.

And, the bottom line in all of the cases resolved by the FEC so far is that the allegations of illegal coordination have been dismissed.

Commissioners, Staff Agree in Most Cases

The structure of the FEC—six commissioners evenly divided between three Democrats and three Republicans—lends itself to deadlocked votes. Many of the agency's critics focus mainly on the three Republican commissioners, who have voted to block investigations of alleged illegal coordination and other campaign finance violations in a number of high-profile cases.

Overall, however, of the 29 FEC cases resolved since creation of the first super PACs five years ago, only eight cases resulted in a party-line deadlocked votes regarding charges that a super PAC illegally coordinated its actions with a candidate's campaign. That figure comes from a new list of cases compiled by the FEC general counsel's office and information about the closed cases accessed by Bloomberg BNA on the FEC's website (see graphic below).

The list of closed enforcement cases involving super PACs was compiled by FEC staff attorneys at the request of Republican commissioners on the FEC and recently was provided to Bloomberg BNA.

That list showed that dismissal was recommended by the FEC general counsel's office in 28 of the 29 coordination cases.

The commissioners' deadlocked votes in eight matters resulted in those cases being closed without a definitive legal ruling on the issues involved. In the other 21 cases, however, a majority of the commissioners—both Democrats and Republicans—voted for a definitive, final ruling that the coordination rules were not violated or that any violation was too minor to be worth pursuing.

In 17 of these cases, the commission voted unanimously to drop the case.

“Any suggestion that the coordination regulations are not being enforced due to Republican intransigence is absurd,” Republican FEC Commissioner Caroline Hunter told Bloomberg BNA. “In fact, the Office of General Counsel recommended there was no reason to believe coordination existed in the vast majority of these cases and the Democrats joined the Republicans in most of those votes. As for the few cases that did not garner four votes, the Democrats, once again, wanted to rewrite the regulation in a way that would trample on First Amendment rights.”

(Click image to enlarge.)

Enforcement Rare, Not Unknown

The FEC votes do not mean necessarily that there can never be enforcement action involving coordination violations, though such actions seem likely to remain very rare.

The 29 closed coordination cases that have been publicly released by the FEC include only closed matters and do not include an unknown number of matters that have yet to be resolved and could still result in enforcement action by the agency.

Though ongoing FEC enforcement matters are handled in strict secrecy, it is known that a number of complaints about alleged illegal coordination remain unresolved. For example, only one case involving a super PAC supporting a presidential candidate has ever been released by the FEC, though many complaints against presidential super PACs have been filed.

The single closed presidential super PAC case—designated Matter Under Review (MUR) 6514—involved alleged illegal coordination by a super PAC supporting the 2012 presidential campaign of former Texas Gov. Rick Perry (R), called Make Us Great Again Inc., and Perry's campaign committee. The Perry case was dismissed by a unanimous, 6-0 FEC vote, which focused on the narrow question of the super PAC and Perry's campaign sharing video footage.

Complaints against other presidential super PACs active in 2012 and the 2016 presidential campaigns have been filed and presumably remain pending at the FEC—some for several years.

In addition, the Department of Justice has made clear that it will initiate criminal enforcement action against illegal super PAC coordination—at least in extreme cases. Earlier this year, DOJ prosecuted a Virginia political consultant, Tyler Harber, for coordinating the financing of a super political action committee he operated and a congressional candidate's campaign committee he managed.

At a court hearing where he was sentenced to two years in prison, Harber told a federal judge that he understood the line defining illegal activity and crossed it deliberately.

“Coordination was something that was commonplace, something I had seen other people do” without getting caught, Harber said.

Deadlocks on O'Donnell Case, Seven Others

While FEC staff attorneys have recommended dismissal of nearly all coordination cases, the exception to the rule came in an early case involving Republican U.S. Senate candidate Christine O'Donnell. A complaint charged that O'Donnell illegally coordinated her activities with a Tea Party super PAC, called Our Country Deserves Better–TeaPartyExpress.org, in her unsuccessful 2010 Senate race in Delaware.

O'Donnell won a surprise victory in the Republican primary that year but lost in the general election to Sen. Christopher Coons (D-Del.).

In O'Donnell's FEC coordination case—designated Matter Under Review (MUR) 6371—the FEC counsel's office said the agency should investigate whether the candidate met behind closed doors with the Tea Party super PAC's leaders to coordinate campaign activities. The case ultimately was dismissed on a deadlocked vote of the FEC commissioners, with the three commissioners holding Democratic seats voting for the staff recommendation to launch an investigation and the three FEC Republicans voting to drop the matter.

In the seven other deadlocked cases, however, it was the FEC Republicans voting to follow staff recommendations to drop the matter, while the FEC Democrats moved to reject the recommendations and voted to open an investigation, according to FEC documents reviewed by Bloomberg BNA.

In all of the recent coordination cases handled by the FEC, besides the O'Donnell matter, the general counsel's office accepted denials of illegal coordination by those accused of violating the law. The agency's staff lawyers concluded, after a preliminary inquiry, that the circumstances in every other case did not provide enough evidence that the FEC's complex regulations defining illegal coordination had been violated.

Mother's Super PAC

These cases included one (MUR 6611) in which a super PAC funded by a candidate's mother spent more than $300,000 on television ads.

The ads supported Laura Ruderman, a Democratic candidate who lost a 2012 congressional primary race in Washington state. Ruderman captured just 7 percent of the primary vote in a U.S. House race won by Rep. Suzan DelBene (D-Wash.).

A report from the FEC general counsel's office said the super PAC backing Ruderman received virtually all of its funding from Ruderman's mother, Margaret Rothschild. Despite charges that her mother was actively involved in Ruderman's campaign and obviously in a position to coordinate the super PAC's activities with her daughter, the counsel's office, citing denials of illegal coordination from Ruderman and her mother, said there was no reason to investigate.

Democratic commissioners on the FEC rejected the staff finding and moved to open an inquiry, but the motion was blocked on a 3-3, party-line vote.

No other closed coordination cases have involved family members, but most, if not all, involved super PACs operated or funded by close associates of the candidates receiving support. In all these matters, however, staffers in the FEC general counsel's office concluded the facts did not warrant further investigation.

In the vast majority of cases, most of the FEC commissioners—both Democrats and Republicans—agreed.

Ravel Calls Coordination Rules Antiquated

The FEC's Democratic chairwoman, Ann Ravel, acknowledged in a recent phone interview that the agency's staff lawyers usually have recommended dismissal of coordination cases, and the FEC commissioners from both parties usually have gone along with the staff recommendations.

Ravel has complained publicly about the FEC's unwillingness to pursue enforcement action as super PACs proliferate and play an increasingly dominant role in U.S. campaigns. She also has criticized Republican commissioners for reluctance to pursue enforcement action.

In an event on Capitol Hill in January discussing campaign finance legal issues, Ravel highlighted the 29 coordination cases dismissed by the FEC without an investigation since the Citizens United v. FEC Supreme Court decision in 2010. She said the cases were dropped because of a lack of clear, up-to-date rules regarding illegal coordination and the unwillingness of Republicans on the commission to vote to authorize investigations.

Ravel told Bloomberg BNA in the recent phone interview that she recognized that the lack of action on these cases had more to do with the FEC's “antiquated” rules defining coordination than anything else.

Ravel noted that the current coordination regulations were written nearly a decade ago—before the Citizens United ruling reshaped the landscape of campaign finance law. That pivotal ruling struck down restrictions on independent campaign spending and sparked the rise of super PACs and other non-candidate groups collecting unlimited contributions to influence elections.

The pre-Citizens United rules are inadequate, Ravel suggested, to regulate current campaigns, in which super PACs have become the key vehicles supporting presidential and other candidates.

That sentiment was ensconced in a formal “statement of reasons” written by Ravel and the other FEC commissioners holding Democratic seats—Steven Walther and Ellen Weintraub—regarding two of the closed coordination cases.

Explaining their votes to reject charges that Democratic House members coordinated with a super PAC called House Majority PAC (MURs 6722 and 6723), the Democratic FEC commissioners said simply: “Some activity that is plainly ‘coordination' under the [Federal Election Campaign Act] statute is not squarely covered by the Commission's coordinated communications regulation.”

Republicans Cite First Amendment

The FEC has been deadlocked, since the Citizens United decision, over whether to write new rules to regulate super PACs and address disclosure, coordination and other issues raised by the increase in independent campaign spending.

While Ravel and other FEC Democrats have pressed for such regulations, Republican commissioners have resisted, arguing that it is up to Congress to determine whether and what new rules are needed in the wake of Citizens United and other recent court rulings. Congress has debated House (H.R. 430) and Senate (S. 229) versions of the DISCLOSE Act to set new rules for independent spending groups, but the measures have been blocked due to solid opposition from Republican lawmakers.

The FEC commissioners voted unanimously in July to advance a possible rulemaking effort aimed at creating new requirements for super PACs and other organizations that spend money to influence campaigns. In response to petitions for rulemaking, the FEC requested public comments on possible requirements for disclosure of funding sources for independent campaign-related spending, as well as restrictions on campaign spending by foreign nationals, solicitation of corporate and union employees and coordination between independent groups and campaigns.

Actually completing any new rules still appears unlikely, as FEC Republicans have not indicated they would relent on their stance that new requirements in this area should be approved by Congress, not the FEC.

In statements on enforcement matters, the Republican FEC commissioners also have criticized Democrats for seeking to clamp down on independent campaign spending that the Supreme Court has said is protected by the First Amendment.

‘Not a Close Case.'

Another of the early coordination cases handled by the FEC involved campaign spending funded by a supporter of Ken Buck, a Republican Senate candidate from Colorado (MUR 6296). Buck lost the close race in 2010 to Sen. Michael Bennet (D-Colo.).

In a written statement on the Buck coordination case, Republican FEC commissioners blasted their Democratic colleagues for voting against staff recommendations to dismiss what they saw as “not a close case.” The Republicans—including current Commissioners Hunter and Matthew Petersen and former Commissioner Donald McGahn—added that, if the complaint in the Buck case sufficed to provide “reason to believe that coordination occurred and thereby launch a federal investigation, it is hard to imagine any allegations, no matter how unsubstantiated, that would not trigger the reason to believe threshold” and launch an FEC probe.

The complaint in the case relied largely on news reports that Buck and one of his key supporters, Jerry Morgensen, the head of Hensel Phelps Construction Co., told prospective political consultants before the campaign began that Morgensen would provide $1 million to help elect Buck. The complaint said Morgensen ultimately provided money to groups which sponsored advertising supporting Buck, but Buck, his campaign committee, the outside groups involved, and the named individuals “all specifically denied coordinating any ads,” the FEC Republicans' statement noted.

“Moreover,” the statement added, “there was no evidence, other than the complainant's accusations, that coordination occurred. Further, even if everyone involved had collaborated on the ad at issue, that still would not have resulted in a violation of the Act because the ad did not meet the definition of a coordinated communication under the Commission's rules.”

Although its language was less vehement, a report from the FEC general counsel's office reached the same conclusion as the Republican commissioners that the Buck case should not be investigated.

“The facts alleged do not satisfy the requirements to find coordinated advertisements,” the counsel's report said, recommending that the FEC commissioners find “no reason to believe” that a violation occurred.

Enforcement Chief Now Acting General Counsel

The legal support provided by the FEC general counsel's office in these controversial cases may have helped to allow Republican commissioners to approve the recent appointment of the agency's assistant general counsel for enforcement, Daniel Petalas, as acting FEC general counsel. The post has been vacant for more than two years since the departure of former FEC General Counsel Anthony Herman in 2013.

Since Herman's departure, the FEC commissioners have continued battling over Republican-backed proposals to limit the investigative powers of agency staff attorneys—an issue that presaged Herman's departure and has hampered filling the counsel's post since then, officials said.

In the recent phone interview with Bloomberg BNA, Ravel praised Petalas as a “straight shooter,” who was widely respected in the agency for providing solid legal advice as the top enforcement staffer. She added that his appointment as interim general counsel until the end of 2015 was “a good sign in that the commissioners unanimously held the current enforcement chief in such high esteem.”

Ravel said Petalas's appointment came about because she had asked to start a new search for a permanent general counsel. After an initial delay, the other commissioners agreed unanimously to do so and to appoint Petalas to the post in an acting capacity.

In addition, she said, commissioners agreed to restart a search to permanently fill other key positions in the general counsel's office: assistant general counsels for policy and litigation. The policy position is now held on an acting basis by FEC staffer Adav Noti, while the litigation office is headed by Kevin Deeley. Ravel said both are expected to be considered for permanent appointments.

Ravel said these moves are important to shore up staffing in the general counsel's office and provide stability for the agency. She acknowledged, however, that it was “hard to know whether that, in and of itself, will mean” the FEC will be able to make progress in dealing with the wider enforcement issues it faces.

To contact the reporter on this story: Kenneth P. Doyle in Washington at kdoyle@bna.com

To contact the editor responsible for this story: Heather Rothman at hrothman@bna.com

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